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April 21, 2020

Mediation in terms of High Court Rule 41A

From 09 March 2020,parties to litigation matters are required to consider mediation in terms of High Court Rule 41A. In brief, mediation is an alternative to having the dispute resolved in court and is a process in terms of which an independent mediator assists the parties in a legal dispute by facilitating discussions,identifying the core issues in dispute, exploring whether there are possibilities of compromise and options as to how the dispute may be successfully resolved.

What this means is that in every new action or application proceeding, the plaintiff or applicant is required to serve, along with the summons or notice of motion, a notice indicating whether the plaintiff or applicant agrees or opposes referral of the dispute to mediation. The defendant or respondent in turn is required to serve a notice indicating whether they agree or oppose referral of the dispute to mediation. These notices must state the reasons for each party’s belief that the dispute is or is not capable of being mediated. The parties may, in any event, at any stage before judgment is granted, refer the matter to mediation,provided that where a trial or opposed application has commenced, the leave of the court is required.

Where a dispute is referred to mediation, the parties shall deliver a joint signed minute recording their election and shall enter into an agreement to mediate. The time limits prescribed by the rules of court shall be suspended for the duration of the mediation proceedings, provided that where a party feels that the suspension is being abused, they may apply to court for upliftment of the suspension. In matters where there are multiple parties, those agreeable to mediation may proceed notwithstanding any other party’s refusal to mediate.Similarly, where there are matters with multiple issues, the parties may agree that some issues be referred to mediation and that the issues remaining in dispute may proceed to litigation.

Except as provided by law,or discoverable in terms of the rules of court, or agreed between the parties,all communications and disclosures, whether oral or written, made at mediation proceedings, shall be confidential and inadmissible in evidence. At the conclusion of the mediation, a joint minute shall be filed indicating whether full or partial settlement was reached or mediation was not successful and the issues upon which agreement was reached and which do not require hearing by the court. Unless the parties agree otherwise, liability for the fees of a mediator shall be borne equally by the parties.

It remains to be seen how the process will work in practice - however the advantages of mediation are that it offers speedy resolution of disputes, is cheaper than litigation, and the process is flexible and avoids technicalities.